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In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Complaint Reference Nos. CA-00010141-002, CA-00010141-003, CA-00010141-004 and CA-00010141-005 were withdrawn.

Background:

The respondent claims that the complainant left his work station on two occasions, he left the company site without permission and showed serious acts of insubordination towards management. It claims that these combined incidences were considered a serious matter, which could have had severe implications on its business and accordingly were deemed to constitute gross misconduct.

The complainant claims that he was unfairly dismissed by the respondent for what it claims was an act of gross misconduct, which was upheld following a hearing and appeal. He claims that he was unfairly treated and when he tried to get legal representation he was not facilitated but rather further disciplined.

Summary of Respondent’s Case:

The following is a summary of the evidence from the respondent’s case

The respondent claims that the complainant was employed as a General Operative at its meat processing Plant. His employment began in 2009 and he was employed there until he was dismissed on 17 November 2016 for gross misconduct.

It claims that due to the nature of the business all employees have structured scheduled breaks to keep order on the product line. It said that on 28 September 2016 the complainant was working on his production line, however, the complainant had left his position without authority to do so. This happened to be at the same time that several other workers had also left their production lines without permission. The respondent claims that the complainant met with Mr. A who told him to return to his production line and this instruction was ignored. While outside the complainant met with Mr. B, the manager, and Mr. C, the general manager, who it claims said they confronted the complainant as to why he was away from his work outside of a structured break. Following that the complainant was issued with a letter dated 28 September 2016 inviting him to an investigation hearing to allow him to respond to an allegation of failure to receive authorisation to leave his work station on 28 September 2016 and a further allegation of insubordination towards management. The meeting was set for 3 October 2016 and he was told of his right to be accompanied at the meeting and that the matter was serious. The meeting was chaired by Mr. C where it said that the complainant declined his right to representation or the need for an appointed translator. The respondent wrote to the complainant on 4 October 2016 inviting him to attend a disciplinary meeting on 6 October 2016 in order to deal with the two allegations raised against him. The respondent claims that a copy of its disciplinary procedures was attached to the letter.

On the morning of 6 October 2016, the respondent claims that the complainant approached the HR manager Ms. E and sought clarification of who would be translating at the disciplinary meeting, and when he was told who, he said he was not happy with the translator as he was not an official translator. The respondent claims that the complainant said he was going to see his solicitor and walked away. The respondent claims that the HR Manager tried to call him back, telling him he had no authority to leave the premises but he did not take heed of the instruction. The respondent said that the complainant was one hour late for the hearing.

The respondent claims that due to the complainant walking off site on 6 October 2016 without permission he was suspended and this was confirmed to him by letter dated 6 October 2016. A new investigation was launched to look at (i) his failure to receive authorised permission to leave his workstation on two occasions - 28 September and 6 October, (ii) failure to receive permission to leave the company premises on 6 October and (iii) insubordination towards management.

The respondent claims that once again it had advised him of his right to representation for the investigation meeting and that this investigation was in line with the respondent’s procedure, a copy of which had already been furnished to him. The respondent claims that two letters were hand delivered to the complainant on 10 October 2016, one in relation to the allegations against him and the other on the details relating to the investigation, which was scheduled to be chaired by Mr. D, the following day.

The meeting commenced as scheduled and an independent interpreter was present to assist with interpretation. The respondent claims that the complainant chose to proceed without anyone accompanying him. The respondent claims that the complainant gave his side of the story about the incidents on failing to get authorisation to leave his work station on 28 September and 6 October and the claim of insubordination towards management. A copy the final report was sent to the complainant on 12 October 2016.

The respondent said that the complainant was invited to attend a disciplinary hearing on 17 October 2016 in relation to the allegations and he was advised of his right to representation. He was furnished with a copy of its disciplinary procedure and advised of the seriousness of the situation. At the meeting, where the complainant was not represented, the respondent said that it was clear that the complainant did not fully understand everything being said, so the meeting was adjourned in order for all the documentation in relation to the case to be translated into his own language. The meeting was rescheduled for 14 November 2016.

The respondent said that at the rearranged meeting the complainant attended again without representation where he denied that he had taken an unauthorised break on 28 September 2016. The respondent claims that on the basis that, he had left his work station on 28 September 2016 and 6 October 2016, that he did not provide confirmation of a pre-arranged meeting with his Solicitor, and had not received permission to leave the factory site on the day in question, that he was told to return to his work station and he refused to do so, the respondent decided to dismiss the complainant. He was given a right to appeal. The complainant wrote to the respondent seeking an appeal and setting out the grounds of that appeal on 19 December 2016.

The respondent said that the appeal was scheduled for 25 January 2017 where the complainant was present again without representation and following the appeal the Appeals Officer decided to up hold the decision to dismiss and he confirmed this in a letter to the complainant dated 6 February 2017 on the basis that his version of events did not match that of the other witnesses.

The respondent claims that its disciplinary policy specifically provides for a categorisation of situations deemed by it as gross misconduct and they included “leaving a work station or site without obtaining permission from a company official” and “deliberate refusal to carry out the legitimate instruction of a company official”.

Legal Submissions

The respondent said the decision in Pacelli v Irish Distillers Limited (UD 2006/417) is relevant here as it sets out the determination of what constitutes as gross misconduct rests with the respondent and it also sets the test to be applied to the actions of an employer when faced with misconduct. It also referred to the Brewster v Burke High Court Case unreported 1978 and the decision in McKenna V Farrow Brothers [1991] ELR 77 in relation to workers disobeying their masters.

The respondent said that at all times during the disciplinary procedure it engaged in line with the best practice and afforded the complainant his full rights to natural justice and fair procedures. It raised the issue that the complainant was always given the opportunity to be represented at the different meetings but he never chose to bring anyone.

The respondent also referred to the decision in Bigaignon v Powerteam Electrical Services Limited (UD 939/2010) and British Leyland UK Limited v Swift (1981 IRLR91) in regard to the proportionality of the action and the band of reasonableness of an employer. It claims that its decision was fair, proportionate and in line with company policy.

Summary of Complainant’s Case:

The following is a summary of the evidence from the complainant’s case.

The complainant is a Ukrainian national and claims that he worked for the respondent from 2001 to 2006 and again from 2009 until he was dismissed for alleged gross misconduct on 17 November 2016.

The complainant claims that by letter of 28 September 2016 he was asked to attend an investigation meeting set for 3 October 2016 in relation to his alleged failure to receive authorised permission to leave his work station and for insubordination towards management. He was advised that he had the right to be accompanied and that the matter was considered as very serious and could warrant disciplinary procedures. He attended the meeting chaired by Mr. D and he said at the meeting that on the day in question he had met with a supervisor Mr. A and told him he was going to the toilet. He said that Mr. A said nothing in reply.

On 5 October 2016, he received a hand delivered letter after 4pm, dated 4 October 2016 informing him that the accusations could go further for disciplinary action on foot that Mr. A, another named witness had a different version of the events to his. The complainant said that he did not get a copy of either statement. A disciplinary meeting was set up for 10:40am on the morning of 6 October 2016 in relation to his alleged failure to receive authorised permission to leave his work station and insubordination towards management.

He claims that evening he searched the internet to get legal advice and he made contact with a solicitor with a view to meeting in advance of the investigation meeting the following day. He claims that he went in to work early to inform management that he needed time off to speak with his solicitor but there was no one around to get approval from so he approached Ms. E to tell her he had to go. He said he left and when he returned to work and attended the disciplinary meeting at 12 noon, he presented his side of events in relation to the incident on 28 September and he also outlined what had happened earlier that morning where he told Ms. E that he had an appointment with his solicitor and he would be late for the meeting.

He said that by letter of 10 October 2016 he was advised that he had another investigation meeting the following day to discuss allegations that he failed to receive authorisation to leave his work station on 28 September and 6 October; that he failed to receive authorisation to leave the site on 6 October and he showed insubordination towards management. Again, he claims that he was advised that he had the right to be accompanied at the meeting and that the matter was considered as very serious and could warrant disciplinary procedures. He claims that by separate letter he was informed that he was suspended with pay while the allegations of misconduct were investigated. He said he attended the meeting, Mr. D chaired the meeting where the complainant said he again outlined his case on the various events.

The complainant maintains that he never received any statement from the other witnesses that had given evidence against his position. An investigation report issued dated 12 October 2016 concluded that the complainant had left his workstation and the site without permission and had shown subordination towards management. A disciplinary hearing was scheduled for 17 October 2016 which he was informed about on the evening of 14 October 2016 and all the documents were in English. The complainant attended the disciplinary meeting chaired by Mr. F and a translator was present. The meeting was adjourned by the chair to have the documents translated.

The meeting reconvened on 14 November 2016, where the complainant said that he explained that he had never been in trouble in his 13 years’ service and the events on 28 September 2016 was nothing out of the usual, he simply went to the toilet, he had asked a colleague to cover for him and there was no supervisor around to seek permission. He said that with regard to the incident on 6 October 2016 he had no time to get consultation between the notification of the hearing and the hearing date, he sourced a solicitor late on that evening before the hearing and came in early to work to seek permission to hold a meeting with the Solicitor before the disciplinary meeting. He said that he told Ms. E what was happening and returned later to work for the disciplinary hearing. He said that the chair said that it would allow him a number of days to provide proof of the arranged meeting with his solicitor on the morning of 6 October prior to the scheduled disciplinary meeting.

The complainant said that he was notified by letter dated 17 November 2016 that he was dismissed for gross misconduct, the letter said that he was provided with all witness statements which he denies and he denies that he admitted to leaving the site without permission. He appealed the decision and in a letter to the respondent dated 19 December 2016 he said that he believed that the disciplinary process was unfair, pre-judged and biased against him and he set out the reasons for his opinion. He noted that the only written statement he was ever provided with was his interaction with Ms. E, no one else’s statements were presented to him, although all the other witnesses’ opinions culminated in him ending up in the position he found himself in and ultimately being dismissed. The appeal was finally arranged for 24 January 2017 chaired by Mr. G. The chair wrote to the complainant on 6 February 2017 notifying him that his appeal was rejected.

Legal submissions

The complainant said that there were no justifiable grounds for the dismissal, and the obligation is with the respondent to justify those grounds. He cited Cox, Corbett & Ryan on Employment Law in Ireland (2009, Clarus Press, at Para. 21.72) “In order to justify a dismissal on the grounds of an employee’s conduct, it must be established by the employer that he acted reasonably in dealing with the employee at all times. This would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing a reasonable conclusion from the information unearthed by any such investigation.” He also cited the decision in Governor and Company of Bank of Ireland v. James Reilly [2015] IEHC 241, in support of his position.

The complainant also said that there is an obligation on the respondent to afford fair procedures to the complainant and this was by-passed by the respondent’s failure to take submission from the other witnesses, or to produce them, as they were critical in this case. This demonstrates that the process was procedurally flawed. He was also not provided with the minutes of the meetings. He again cited Cox, Corbett & Ryan on Employment Law in Ireland (at Para’s. 18.38, 18.39, 18.47 and 21.100).

The complainant said that in relation to the respondent’s decision to suspend him, he relied on a number of cases to emphasise the effects of such an extremely serious measure including, McLoughlin v. Setanta Insurance Services Limited [2012] 23 ELR 57, Wallace v. Irish Aviation Authority [2012] 2 ILRM 345 and in particular Governor and Company of Bank of Ireland v. James Reilly [2015] 241. He claims the that the Reilly decision set out the seriousness of how suspension should be treated. He claims that suspension was entirely unnecessary in the circumstances.

The complainant said that no lesser sanction was given adequate consideration by the respondent as an alternative to dismissal and cited the EAT’s decisions in Bolger v. Dublin Sport Hotel Limited UD 45/1985 and in case Fitzpatrick v. Superquinn Limited UD 452/1984 in relation to disproportionate sanctions. He claims that the sanction imposed on him was entirely disproportionate and unreasonable. He further contends that the issue that arose on 6 October was a direct result of the short notice given to the complainant of the disciplinary hearing, there was no evidence of consideration of a lesser sanction and this could not amount to what is regarded as gross misconduct.

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

It is clear that there was a dismissal and that is not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of gross misconduct after he was adjudged to have left his work station on two occasions on 28 September and 6 October and left the processing Plant on 6 October and showed acts of insubordination towards management. The respondent maintains that it conducted a full and fair investigation in line with its disciplinary policies, and following that, it felt that it had no choice but to dismiss the complainant. The complainant disputes the allegations against him. He claims that he went to the toilet on 28 September 2016 and what followed cascaded out of control. He argues that the disciplinary process was flawed as the respondent did not interview the appropriate people or at least if they did he was not presented with their written statements. He claims that the penalty of dismissal was totally disproportionate when all the circumstances of the case are taken into consideration and that a different sanction would have been appropriate given the nature of his long exemplary record. The complainant also contends that there was no need for the respondent to suspend him while it conducted its investigation.

Conclusions

I am satisfied that it is not for me to establish if the complainant was guilty of an act of gross misconduct or not. The respondent has made a determination that the cumulative actions of the complainant on 28 September and 6 October equate to an act of gross misconduct. Rather it is for me to consider all the facts and to determine if there are substantial grounds to justify the dismissal and see what a reasonable employer would do in the same position given the same set of circumstances. It is also my role to determine if fair procedures were applied to the dismissal and the disciplinary process.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland v. O’Reilly [2015] IEHC 241 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers’ view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

I note the decision of the Employment Appeals Tribunal in Hennessy v. Read & Write Shop Ltd UD192/1978 “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In O’Riordan v. Great Southern Hotels, UD 1469/2003, I note the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

Finally, I note in the EAT case David Mullane v. Honeywell UD 111/2008 where it states, “The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response”.

I understand that there was a separate investigation into employees who had been on “unauthorised breaks” on 28 September 2016 and the complainant was one of those charged with this offence. The complainant disagrees that he was with the other workers, he said he happened to be at the toilets at the same time and assisted with the translation between management and those other employees. I note he said he was completely surprised with this charge against him and he tried to explain what had happened and to get legal advice ahead of his disciplinary meeting on the 6 October 2016. I note he was charged a second time with “going missing from work” on the morning of 6 October although he felt he had informed Ms. E what his intensions were.

I note the respondent said that the consequences of the complainant’s actions could have had significant costs on it business. The complainant left his production line on two occasions without permission and the entire processing Plant without permission and acted in an unacceptable manner to management and Ms. E. I note that the respondent said that the charge on 28 September was not on its own the most serious matter but the complainant failed to grasp its severity by repeating it again and leaving the entire processing Plant on 6 October and when all of the circumstances are considered together the actions amount to a case of gross misconduct.Accordingly, in all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal.

The second issue which I must consider relates to the procedural fairness or otherwise of the complainant’s dismissal. The complainant contends that the procedures which were invoked by the respondent in terms of the manner in which the investigation and disciplinary procedures were conducted were flawed. The complainant contends that the respondent showed a lack of transparency and impartiality throughout the process as the complainant’s supervisors and other co-workers were not interviewed, or at least, if they were interviewed their statements relating to the complainant were not presented to him during the process.

As a reference point at this stage I note the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1. the details of the allegations or complaints be put to the employee concerned;

2. the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3. the employee concerned is given the opportunity to avail of representation; and

4. the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

I also take note of the decision in Foley v. Post Office (2000) CR1283 as stated by Mummery L.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers’ decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”.

In considering this matter, I am satisfied that the respondent had its own established Grievance and Disciplinary Procedure in place at the time. I have examined that document and I have carefully considered the manner in which the disciplinary procedures were applied in the present case. I am satisfied that the complainant was given advance notice of all the misconduct investigation and disciplinary meetings, the notice prior to the meeting of 6 October 2016 was short but I am satisfied that the complainant was on notice and I note that he was invited to bring representation throughout all the processes but he chose not to. I am satisfied that the complainant was advised of what was happening through-out and where potential problems arose in relation to translations or lack of understanding of what was happening the respondent stopped the process and allowed for clarification to be provided and this was at a significant cost to the respondent. This shows latitude on behalf of the respondent throughout.

I note that the complainant was given time to substantiate certain claims that he made in this case – i.e. to name the other co-workers that were out at the “unauthorised break” on 28 September, but he failed to do so during the investigation stage; and to provide proof of a solicitor’s appointment on 6 October, which would explain his walk out of the Plant, but he failed to do so. I am satisfied that this goes to the centre of the case before him. I note that the complainant takes issue that certain witnesses were not interviewed or if they were he did not see their submissions. To me the most important witnesses appeared to have been interviewed (Mr. C and Ms. E) and he did receive their individual statements. I note that on Appeal another witness, his supervisor, not previously interviewed, was subsequently interviewed and it appears that nothing turned on his statement as it did not affect the Appeal Officer’s decision. This shows a new open mind looked closely at the case before him on Appeal, challenged that decision but came to the same conclusions. Having examined the respondent’s Disciplinary policy, I am satisfied that the process adopted was followed step by step as provided for in its own policy. Therefore, I find against the complainant on this element of his complaint.

In relation to the complainant’s claims that the respondent’s decision to suspend him while the investigation was ongoing was unnecessary and inappropriate. He cited the decision in Bank of Ireland v. Reilly [2015] IEHC 241 in his defence.

I note the respondent points to its own Grievance and Disciplinary Procedure which has a dedicated clause in relation to suspensions. This includes that “in cases where the company considers that summary dismissal may be warrened, it may suspend an employee with pay in order to facilitate investigation of the particular case”. I note from the decision in the aforementioned Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. stated “…Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, …. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer.” I am satisfied the allegations before the complainant are of such a repetitive nature they appear to fall within the category of cases that are anticipated that Noonan J. was considering in the Bank of Ireland v Reilly case. Therefore, I find against the complainant on this element of his complaint.

I must repeat again that my role is not to make findings on whether the allegation against the complainant was true or not true. In assessing the actions of the complainant, it lies with the respondent to consider the case carefully against the complainant and insure that the procedures applied must comply with the general principle of natural justice and fair procedures. In the main I am satisfied that the conduct of the respondent during this process, if not perfect, was of a sufficiently high standard to meet that test. Accordingly, on the basis of my findings above I declare the complaint is not well founded.

Based on the evidence at the hearing as outline above, I am satisfied that the complainant’s claim under the Minimum Notice and Terms of Employment Act is well not founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.